concurring and dissenting.
I would affirm the district judge’s decision in its entirety. There is no basis for *427supposing that Blue Cross of Wisconsin (as I shall call the defendant) acted arbitrarily or capriciously in denying Mrs. Reilly’s claim. She underwent in vitro fertilization in 1984, at a cost of something under $3,000. The employee benefits plan under which she seeks to recoup this expense excludes “services and procedures which are experimental/investigative in nature,” defined as any treatment “not yet recognized as accepted medical practice by” Blue Cross of Wisconsin. In deciding that in vitro fertilization was still an experimental procedure in 1984, and in denying her claim on that ground, the defendant consulted both its own medical advisory committee and a national association of Blue Cross-Blue Shield plans that evaluates and makes recommendations concerning medical procedures. Both groups advised it that in vitro fertilization, in part because of its success rate (below 50 percent, and perhaps as low at 10 percent), was still experimental.
The denial of benefits may be right or wrong but it is a reasonable interpretation of the plan, and that should be the end of the case. Judge Will, skilled lawyer that he is, is able to find a number of holes in the defendant’s case — hearsay, lack of expert evidence to counter Mrs. Reilly’s experts (with their impressive credentials), and the implausibility of classifying a procedure as experimental merely because it has a low success rate (implying, if pushed to a logical extreme, that all treatments for the terminally ill are experimental). And he is able to conjure up a host of unanswered questions concerning the qualifications of the members of the advisory committees, the committees’ evidentiary basis, the method of compensating their members, and the impact of the decision on other Blue Cross-Blue Shield plans. Judge Will even questions the validity, as well as the defendant’s interpretation, of the “experimental/investigative” provision — although Mrs. Reilly does not — on the ground that it gives too much discretion to the defendant.
All this probing and questioning would be fine if this were a suit for breach of a contract of insurance rather than an action for judicial review of the denial of a claim for employee benefits, if the burden of proof in a breach of contract suit were on the defendant rather than the plaintiff, and if the plaintiff in such a suit were arguing unconscionability. None of these things is true. Not only has Judge Will disregarded our role in this proceeding, the nature of the proceeding, the standard of review, and the burden of proof, but he has gone beyond the issues framed by the parties, since as I have said Mrs. Reilly does not question the validity of the “experimental/investigative” provision, but only its application to her claim.
The administrators of Blue Cross of Wisconsin are in no position to make a personal judgment on whether in vitro fertilization is an experimental procedure. They must consult experts. They consulted two expert bodies: their own medical advisory committee, and a national association of Blue Cross-Blue Shield groups that serves as a clearinghouse for medical information. On the face of things this seems a reasonable way to have proceeded. If Mrs. Reilly thought that these expert bodies were prejudiced or incompetent, she could have deposed their members; it was her responsibility, if she wanted to defeat the defendant’s motion for summary judgment, to answer the unanswered questions noted by Judge Will. Instead of questioning the qualifications of the members of the advisory bodies on which the defendant relied, she presented affidavits by physicians who believe that in vitro fertilization had by 1984 moved beyond the experimental stage. As it happens these physicians are specialists in the treatment of fertility and naturally want to encourage the use of an exciting and promising treatment. All that their affidavits show, however, is that there is a difference of opinion in the medical community on the experimental character of the treatment. The existence of such a disagreement does not begin to demonstrate that Blue Cross of Wisconsin acted arbitrarily or capriciously in relying on its medical advisors.